With Obama announcing that he will pull 10,000 troops from Afghanistan by December 2011 (and another 23,000 by the end of next summer), it's time to get up to date on USERRA.
If this makes you cringe a little, you're not alone. USERRA requirements are tricky for many employers. In fact, a 2010 poll conducted by the Society for Human Resource Management (SHRM) revealed that only 9 percent of respondents were “extremely familiar” with USERRA, while 52 percent claimed to be “somewhat familiar” and an alarming 39 percent of respondents claimed to be unfamiliar with the law.
No more excuses! Only if you're thoroughly debriefed on the details of the law can you be certain you're giving returning soldiers every advantage in the workplace.
The rights of employed military members
USERRA is the primary federal law that provides employment and reemployment rights for members of the uniformed services, including veterans and members of the Reserve and National Guard. It prohibits employers from discriminating against employees in regard to hiring, firing, promotion, training or any other terms of employment based on past, present or future military service. The law:
• Applies to all employers, regardless of size
• Covers anyone in federal uniformed services, including full-time, part-time, temporary, probationary and seasonal workers on active duty, reserve duty, or in training
• Also protects intermittent disaster response personnel
At its core, USERRA requires that you give employees a military leave of absence of up to five years. Employees who take a military leave of absence are entitled to accrue benefits based on seniority, to pay for continued health care coverage, and to participate in insurance and other benefits not based on seniority.
To be eligible for reinstatement, the returning veteran must notify you that he or she intends to return once military service is completed. The amount of time the veteran has to contact you regarding reemployment depends on the length of service:
• For service less than 31 days, the individual must return at the beginning of the next regularly scheduled work period on the first full day after release from service (taking into account safe travel home plus an eight-hour rest period)
• For service more than 30 days but less than 181 days, the individual must submit an application for reemployment within 14 days of release from service
• For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service
The escalator principle
Remember: When a service member returns from active duty of five years or less, that individual is entitled to any increases in seniority, promotions, pay and benefits that would have been received had he or she never left – a legal concept known as the “escalator principle.” USERRA also requires that you provide any training or retraining necessary to enable returning service members to refresh their skills, thus allowing them to qualify for reemployment.
USERRA also provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. Service members recovering from injuries received during service or training are allowed up to two years from the time they completed service to return to their jobs or apply for reemployment.